73 F. 852 | 2d Cir. | 1896
The libelants are owners of the steamship San Domingo. They engaged the firm of Bowring & Archibald, shipbrokers in New York City, to effect a time charter of their vessel. Negotiations ensued between this firm and W. n. Hurlbut & Co., representing the respondents, which resulted in a charter executed by Bowring & Archibald, agents for owners, and by the New York & Bermudez Company, through its president. The material parts of the charter party are as follows:
“The said agents agree to let, and the said charterers agree to hire, the said steamship for a trip of about two calendar months from the day of delivery * * * in New York. * * * she being then stanch, strong, and every way fitted for the service, * * * and to be so maintained during the continuation of this charter party; to be employed in such lawful trades, between safe port a0“d ports in British North America (not north of Eiver St. Lawrence) aad United States of America aad West Indies '™d South America (not south of Eiver Platte), including Guanaco, Venezuela, as charterers or their agents shall direct.”
All of this clause was a part of the printed form used, except the words italicized. The words, “South America (not south of River Platte),” were broad enough, by themselves, to include any port in Venezuela. The insertion, therefore, of the words, “including Cuanaco, Venezuela,” was a distinct, positive, and explicit: notice to the owners that their vessel was being chartered for use in trade with that port, and was to be stanch, strong, and in every way fitted for such service as employment in that trade would require of her.
Next follows a clause providing for payment by owners of wages, provisions, and stores. This is followed by a provision requiring charterers to pay for coals, port charges, etc., — both clauses being part of the printed form. Then comes the clause which, by reason of the careless and* inartificial way in which it was expressed, has caused the litigation now before this court for determination. It is in ink, containing provisions not contemplated by the printed form, and reads as follows:
“Steamer to be fitted with shifting boards and bulkheads suitable for carrying asphalt cargoes safely, to be done by owner’s agents, but at charterers’ expense.”
“The clause in question was a substantial and necessary part of the charter. The nature of the cargo — a peculiar one — is not elsewhere referred to. Special fittings for such a cargo were necessary to be made by some one;*855 and, as the clause in question is made a part of the charter itself, I feel bound to construe it in connection with the previous clause, providing that tlie ship ‘shall he in every way jit ted for the service,’ and as an amplification and further specification of what the service was expet-1 (id to be, and what was necessary to make the ship fit.’’
The charter party, therefore, when executed by owners' agents, bouud their principals, the owners, when notified that an asphalt cargo was to be loaded, to deliver the Ban Domingo "tight, stanch, strong,and iu every way fitted for'’ such service, "with shifting boards and bulkheads suitable for carrying asphalt cargoes safely.” Apparently, this stipulation was entered into by owners’ agents without any consultation with their principals. It was, however, within their authority, as shipbrokers and agents for the owners, io make such stipulation, it was, moreover, reasonably to be expected that having, as agents, thus increased their principal’s obligations beyond the measure expressed in the usual printed form of charter party, they would continue to act as agents for owners, in complying with such special stipulation. In other words, having pledged the ship to a warranty of the seaworthiness of additional fittings to be put in by them, it might fairly be supposed that they would personally superintend tin* doing of the work, thus giving their principals the benefit of Ute special knowledge and experience they were supposed to possess. The contrary seems to have been the case. Having negotiated the charter, executed the charter party on behalf of owners, and thus, presumably, earned their commissions, they turned the business of fitting up the Ban Domingo lo safely carry asphalt cargoes over to the captain, who liad never had any experience with such cargoes. The Ban Domingo being in Philadelphia, lío wring & Archibald sent for the captain to come to A'evv York, for consultation with the charterers. Upon his arrival they sent him with a clerk to the charterer’s office. There he received some general instructions, but none as to shifting boards, or ÍInkind of bulklu-ads needful to keep the asphalt from shifting. He returned to his ship, in Philadelphia, and, agreeably to the advice of Bowring & Archibald, consulted L. Westergaard & Co., steamship agents in Philadelphia, as to tlie best man for doing the fitting up, and, on the latter’s advice, employed a firm of «hip carpenters to do tlie work. The carpenter to whom the work was intrusted did not know how many tons of asphalt the vessel was going to carry. lie liad never fitted up a vessel for asphalt, and made no inquiries arlo what fittings were necessary for such a cargo. The captain, who understood that asphalt was about like pitch, informed him (hat ¡he cargo was a nasty one to carry, that it would run, and that the bulkhead had to be made extra strong. The carpenters lined the ship’s sides with plank, to protect it against the sticky contact of the asphalt. They also took down the cross bulkhead already in the foiv hold of the ship, and rebuilt the same so as to enlarge' the temporary coal bunker between that bulkhead and the engine room. No other work was done, no shifting boards placed, nor any prepared and put on board; and in this condition the vessel was delivered.to charterers, and sailed from Philadelphia to take her cargo of as
The San Domingo sailed in due course for Port of Spain, where she was to touch and report to charterer’s agent, and thence to Guanaco. Having by this time read the charter party, the captain, on the voyage down, put up shifting boards fore and aft. in the forward hold, and shored or braced them up, where needed, against the ship’s sides. The timber used was such as he had aboard; part of it being a temporary between-decks, which was laid when carrying fruit. In the after hold there was a tunnel shaft rising about seven feet high from the bottom of the ship, which, for that distance, sufficiently answered the purpose of a fore and aft partition. Ho shifting boards were placed immediately above this tunnel, and
“Shifting boards,” as the name implies, are not permanent structures; and a ship may properly be said to be fitted with “suitable shifting boards,” if they are aboard, although stowed away until the necessity for putting them in place may arise. The circumstance, therefore, that the charterers had a chance to go aboard the ship at Philadelphia, and see her fittings, before delivery was accepted, does not estop them from now insisting that she did not have on board the material which the charter party stipulated she should carry for the purpose of putting up the temporary partitions when required. Nor do we find in the testimony as to the sayings and doings of Capt. Cann, who was the agent for the charterers’ asphalt business in Port of Spain and Guanaco, sufficient to excuse the shipowners from carrying out the terms of their written contract. Whatever authority Cann had, — and that is not very clearly shown, —he certainly had noue to alter the contract, or waive the obligation of complying with its terms.
When she was in the port of refuge the San Domingo was furnished with a fore and aft bulkhead in the after hold, and a double plank fore and aft bulkhead in the forward hold. These bulkheads, which were required by the surveyors at Port of Spain, were-paid for by the owners, and have not been paid for by the charterers. We are inclined to the opinion, from the testimony, that these structures were more elaborate and expensive than the occasion warranted. With such a cargo as this, it is evidently “the first step that costs.” Once let a small quantity get over to the wrong side of the ship by an unobstructed path, and the list will continue to increase till nothing but a permanent structure as solid as the ship’s side can resist the strain. But the feeble movement of the first installment may, no doubt, be effectually checked by a much slighter obstacle. The catastrophe already experienced, however, had probably made the surveyors overcautious. The claim is made by libel-ants that thé cost of these fittings should be allowed to them. The district judge disallowed the claim, as not within the issues raised by the pleadings. The charterers undoubtedly are chargeable with the necessary expense of supplying sufficient fore and aft partitions, but it does not follow that they are to pay the increased cost of putting up such partitions in a port of refuge. If there were evidence in the case showing what would be a fair and reasonable price for supplying shifting boards suitable for safely transporting asphalt cargoes, in the port of Philadelphia, at the time the vessel was fitted up, we would be inclined to allow libelants to recover that amount, irrespective of the form of their pleading, and thus avoid circuity of action, but there is no such evidence in the case. The decree of the district court is affirmed, with costs.